Can I Say That in an Online Review?

Online reviews can make or break a business’ reputation. With everyone from your family doctor to the neighborhood takeout joint asking you to rate your experience on social media, you might not think twice about sharing praise or problems. When it’s the latter, it might feel right in the moment to take the company to task—but it’s wise to stop and think before you hit “submit.” 

Opinions, even when posted online, are typically protected by the First Amendment, says attorney Mariann Wang, who handles civil rights cases at Cuti Hecker Wang. But be sure you can back up any factual claims. 

“Determining the line between protected expressions of opinion and defamation is very factually intensive,” she says. “Avoid threats of violence or deeply derogatory commentary,” even if you’ve got your facts straight, and, of course, never attack someone’s race, gender, disability, sexual orientation or other protected characteristics. 

Wang says firing off a particularly scathing response—even under a screen name—doesn’t mean you’ll fly under the radar. “If a company has enough time and resources, they can hire a lawyer or even sue the internet service provider to track down anonymous reviewers,” she says. “You can be held to account for anything you write that is particularly nasty or without factual basis, opening you up to defamation and civil claims or, if you incite violence, prosecution.” 

The Consumer Review Fairness Act—a federal mandate—protects a reviewer’s ability to share honest opinions about a business’ products or services in any forum, says Terese Arenth, who focuses on law involving media, marketing and advertising at Moritt Hock & Hamroff in Garden City. “It was enacted in 2016 in response to reports that businesses were trying to prevent people from giving honest reviews about their products and services,” she says. “The act makes it illegal for businesses to have nondisparagement clauses in their contracts that allow them to use the threat of a lawsuit or to otherwise penalize a party to the contract for giving a negative review about the business, its products or services.”

There are some caveats: “Businesses can still prohibit or remove a review that contains confidential information, is unrelated to the company’s products or services, or is clearly false and misleading,” says Arenth. That’s different, she points out, from “just disagreeing with a consumer’s opinion.” 

Though companies have more leeway to pursue legal avenues when a review contains false statements, or violent or disparaging language, some may file—or threaten to file—SLAPP (Strategic Lawsuits Against Public Participation) suits, in an effort to chill the speech. “But the reviews may be protected by anti-SLAPP legislation, particularly if the reviews are deemed a matter of public interest,” says Helen Setton, an attorney at NYC’s Nesenoff & Miltenberg who is experienced in defamation and civil rights cases. Anti-SLAPP statutes have been adopted in most states, including New York. “If a defendant in a SLAPP suit succeeds on their motion to dismiss the case, the plaintiff must pay for the defendant’s attorneys’ fees,” she says. 

New York expanded its anti-SLAPP statutes in 2020, updating the language to protect consumers’ opinions of public interest, says Setton. And if a company sues someone for an honest, albeit negative, review, the business may be on the hook for the individual’s legal expenses. Setton recalls a recent case in which a local plastic surgeon sued a patient for leaving unfavorable reviews on public forums: “The patient proved that the review qualified as an exercise of her constitutional right to free speech and was a matter of legitimate public concern and interest, so she was entitled to seek damages and attorney fees against the surgeon under the anti-SLAPP law.” 

For a business to prove defamation, it must prove to the court that a false statement was made that caused it damage. “Since falsity is a necessary element of defamation, only a fact can be proven false; pure opinion isn’t actionable, … Also, truth is a complete defense to defamation,” says Arenth. 

“The plaintiff must show that the defendant acted with actual malice, [defined as] proof that the publisher knew the statement was false, or probably false, or acted with reckless disregard of the truth or falsity,” notes Setton. “Approaching a review from a place of personal animus—meaning you just don’t like the business owner—can get you into trouble.”

The Takeaway

If they could, most businesses would probably take down negative reviews. And sometimes they can. Most social media platforms have terms of service and content guidelines that uphold free speech but prohibit offensive, harassing or derogatory comments. “So that gives a business a little bit of a hook, where they may be able to seek removal or takedown of a review if it’s in breach of the platform’s guidelines,” says Arenth. “Otherwise, to be perfectly frank, getting something taken down can be difficult.”